Washington Law Review


In Greenleaf's first edition, he adopted the dictum of Mascardus that an admission is not evidence but a substitute for proof. This was repeated in the first fourteen editions following, was copied by Taylor, was accepted by Wharton, apparently acquiesced in by Thayer, and later strenuously insisted upon by Professor Gifford at Columbia. Unless the dictum be given the interpretation put upon it by Gifford, that it takes the place of proof so long as the jury does not disbelieve it, it would seem to mean that an extra-judicial admission stands on the same basis as an admission made in the pleadings or by stipulation in open court: if it once be established that the admission was made, then the matter admitted is beyond the realm of dispute in the case. And there are a few English cases appearing to hold just that. When Mr. Wigmore came to edit the sixteenth edition of Greenleaf, he saw at once that these English cases were no longer law anywhere; but he accepted Greenleaf's conclusion that an admission is not evidence, by taking from it all its supposed power to establish the matter stated in it and giving it only an impeaching effect. It is, he said, like any unsworn contradictory statement of a witness, which may be admitted to destroy his story on the stand but can not be used to establish the opposite. He, therefore, defined it as a statement inconsistent with the position which the admitter is taking at the trial.

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